Kocyigit v R

1. [1]

   HOEBEN CJ at CL: I agree with Bellew J.

2. [2]

   BELLEW J: On 14 February 2018 Mehmet Kocyigit (“the applicant”) pleaded guilty in the Local Court to a charge in the following terms:

3. [3]

   The charge to which the applicant pleaded guilty was contrary to s 95(1) of the Crimes Act 1900 (NSW) (“the Act”), the maximum penalty for which is 20 years imprisonment. The applicant adhered to his plea when he appeared before the District Court for sentence with a co-offender, John Sio (“Sio”).

4. [4]

   On 11 May 2018, the applicant was sentenced by her Honour Judge Herbert to a non-parole period of 1 year and 7 months imprisonment commencing on 10 May 2018, with an additional term of 1 year imprisonment. The applicant is eligible for release on parole on 9 December 2019.

5. [5]

   The applicant now seeks leave to appeal against that sentence on the ground more fully set out below.

THE FACTS OF THE OFFENDING

1. [6]

   An agreed statement of facts was tendered before the sentencing judge, on the basis of which her Honour found the facts of the offending to be as follows (commencing at ROS1):

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

1. [7]

   It should be noted that none of the factual findings reached by the sentencing judge, in terms of either the objective seriousness of the offending or the applicant’s subjective case, were the subject of any challenge before this Court. The sentencing judge found (commencing at ROS 4) that the applicant and Sio, by prior agreement, approached the victim and struck him with multiple blows before robbing him, and that both had persisted in attacking the victim even after it was obvious that he was injured and had called for help. Her Honour found (at ROS 5) that the period of contemplation and planning on the part of the applicant and Sio was “brief and rudimentary”, but that the offending was aggravated by the fact that it was committed in company. Her Honour also found that the injuries sustained by the victim were “relatively serious”. Having regard to all of these factors, her Honour concluded (at ROS 5) that the offending fell at the mid-range of objective seriousness. In reaching that conclusion, her Honour rejected the applicant’s sworn evidence (at T 24.33) that the robbery had not been planned.

2. [8]

   In terms of general deterrence her Honour said (at ROS 13-14):

3. [9]

   Her Honour’s reference to general deterrence being given “lesser weight” in the present case is to be understood as a reference to the applicant’s psychological condition which is discussed further below.

THE APPLICANT’S SUBJECTIVE CASE

1. [10]

   In the course of giving evidence before the sentencing judge, the applicant expressed his remorse for the offending (at T25.5 and following). He applicant also told her Honour that he did not think that he would ever commit an offence like this again because he was “not that type of person” (at T27.19-T27.20).

2. [11]

   Tendered in the applicant’s case on sentence was a report of Chafic Awit, a registered Psychologist. On the basis of the history provided by the applicant, Mr Awit recorded that the applicant was 21 years of age, that he had been born in Turkey, and that he had migrated to Australia when he was aged 3. The applicant told Mr Awit that the relationship between his parents was “riddled with verbal abuse”, leading to their separation almost three years ago.

3. [12]

   The applicant completed year 12 and although he had a sporadic work history for a period of time, he had obtained employment shortly after his arrest. He said that he had commenced using illicit substances at the age of 15, having been introduced to cannabis by a peer group. He told Mr Awit that he had initially used cannabis each weekend but that this escalated to daily use over a short period of time. He told Mr Awit that he had felt that short term benefits of using illicit substances included numbing his mind and allowing him to escape reality, and that these benefits far outweighed any adverse consequences that such addiction might have on his family, his employment and his general functioning. He told Mr Awit that he continued to use cannabis because he felt that it assisted him.

4. [13]

   In terms of the offending, the applicant told Mr Awit that he had gone out with a friend to try and break a depressive mood, having been recently terminated from his employment. He said that he was looking for a convenience store at which he could buy a lighter to light a cigarette, when he and his friend saw the victim. He told Mr Awit that it was never his intention to assault or rob the victim and that when he had asked for a light, his friend commenced the assault, following which he said he acted impulsively by participating.

5. [14]

   Under the heading “Mental Health History” Mr Awit stated:

6. [15]

   In recording these matters Mr Awit noted that he had reviewed a history of symptomatology with the applicant who, in his opinion, had recorded a number of diagnostic criteria consistent with Bipolar disorder. Mr Awit expressed the opinion that the results of psychometric testing that he administered were consistent with a diagnosis of Major Depressive Disorder. He concluded:

7. [16]

   Also tendered in the applicant’s case on sentence was a pre-sentence report which assessed the applicant as being at a low risk of re-offending. The report concluded:

8. [17]

   Finally, the applicant relied upon a number of testimonials tendered in his case. His father made mention of the applicant’s expressed “shame” for his offending, and his wish to apologise to the victim. The other testimonials spoke of what the authors saw as the applicant’s character and integrity. The applicant’s criminal history consisted of nothing other than a relatively minor traffic matter which had been dealt with in the Local Court in 2014.

9. [18]

   Against a background of this evidence, the sentencing judge concluded that (inter alia):

10. [19]

    I have already noted (at [8] above) that her Honour effectively concluded that considerations of general deterrence, whilst important, were to be given less weight in the present case. In terms of the applicant’s moral culpability her Honour found (at ROS 13) that the applicant’s youth and immaturity would have contributed to the commission of the offence. Her Honour then said (at ROS 13):

Submissions of the applicant

1. [20]

   Counsel for the applicant relied upon four particular matters which, it was submitted, supported a conclusion that the sentence was manifestly excessive, and that a lesser sentence was warranted in law. These factors were:

2. [21]

   In expanding upon these factors, counsel submitted that the applicant’s role in the offending was subordinate to that of Sio, and that his mental illness was a significant factor which was not reflected in the sentence which was imposed. It was submitted that in all of these circumstances, the sentence imposed failed to adequately reflect the applicant’s overall subjective case, the relevance and significance of his mental illness, and the reduced role of general deterrence.

3. [22]

   In oral submissions before this Court, counsel emphasised various aspects of the applicant’s subjective case, including his good prospects of, and personal commitment to, rehabilitation, his more recent work history, and his lack of criminal history.

Submissions of the Crown

1. [23]

   The Crown accepted that the guideline judgment in Henry was a relevant reference point in assessing whether the sentence which was imposed was manifestly excessive. In that regard the Crown noted that:

2. [24]

   The Crown submitted that when these factors were applied to the circumstances of the present case, the Henry guideline did not suggest manifest excess.

3. [25]

   In terms of the applicant’s psychological condition, and the role of general deterrence in determining an appropriate sentence, the Crown submitted that it was clear that the sentencing judge had given full consideration to the applicant’s mental health when assessing his moral culpability. The Crown also submitted that the mere fact that an offender may suffer from a mental illness is not, of itself, a sufficient reason to impose a more lenient sentence than might otherwise have been warranted. The Crown submitted that it remains for a sentencing judge to examine the facts, and determine whether any mental condition has the consequences for which an offender might contend.

4. [26]

   The Crown further submitted that the sentencing judge had properly applied the principles which govern the sentencing of young offenders, and emphasised that whilst considerations of general deterrence and retribution may be of less significance when sentencing a young offender as opposed to an adult, such matters cannot be completely ignored. It was submitted that those matters remained relevant, and that the weight to be given to them was a matter for the sentencing judge. The Crown submitted that there was no error in the manner in which her Honour had addressed this issue.

5. [27]

   Finally, the Crown submitted that the sentencing statistics relied upon by the applicant were of limited utility, and that the issue for this Court to determine was not whether the applicant’s sentence fell within or outside a particular statistical range, but whether the sentence fell outside the range of the permissible exercise of sentencing discretion.

Consideration

1. [28]

   In Henry, Spigelman CJ (with whom Wood CJ at CL, Newman J and Simpson J (as her Honour then was) agreed) said the following in relation to offences contrary to s 97 of the Crimes Act (at [162]):

2. [29]

   The offence to which the applicant pleaded guilty was contrary to s 95 of the Act, and not s 97 as was the case in Henry. However, as the Crown pointed out, the judgment in Henry remains a relevant reference point in relation to sentencing for an offence against s 95: Azzi v R [2008] NSWCCA 169 at [37]; McDonald v R [2015] NSWCCA 280 at [92]. In terms of the factors referred to by Spigelman CJ, those in (i), (iii), (iv), (v), (vi) and (vii) apply to the applicant. In those circumstances, the judgment in Henry provides little support for the conclusion that the sentence is manifestly excessive.

3. [30]

   The sentencing judge exhaustively reviewed the applicant’s subjective case, including the evidence of his psychological state. The relevance of such a factor on sentence was explained by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178]. In a subsequent decision of Aslan v R [2014] NSWCCA 114 Simpson J (as her Honour then was) said, in reference to De La Rosa (at [34]):

4. [31]

   Subsequently, in Alkanaan v R [2017] NSWCCA 56 Harrison J (with whom Payne JA and Schmidt J agreed) said (at [108]):

5. [32]

   In the present case, the applicant relied upon the report of Mr Awit to establish his mental state. The sentencing judge concluded that because the applicant had given Mr Awit a false version of events surrounding the offending, the weight which could be attached to Mr Awit’s opinions was necessarily lessened. That conclusion was clearly open. Indeed, as I have already noted, it was not the subject of challenge before this Court. Clearly, her Honour did not ignore that issue. On the contrary, she found that although the applicant’s mental state impacted upon his decision making capacity, the offending was not as impulsive as the applicant had claimed to Mr Awit and that accordingly, any reduction in the applicant’s moral culpability would necessarily be modest. Those findings were amply supported by the evidence. In terms of general deterrence, and although it was not expressly stated, it is apparent that her Honour gave that factor less weight on account of the applicant’s mental health. Again, that approach was in accordance with principle, and does not disclose error.

6. [33]

   Further, the sentencing judge clearly took the applicant’s youth into account in the passage of her remarks set out at [19] above. He approach to that issue was entirely in accordance with principle: see for example KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51. The seriousness of an offence is relevant to the emphasis that can be given to the youth of the offender. Retribution and deterrence cannot, in a serious case, give way entirely, or even substantially, to the interests of rehabilitation: JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83 at [108] per Simpson J (as her Honour then was). The present was, on any view, a serious case and her Honour’s approach discloses no error.

7. [34]

   In oral submissions before this Court, counsel for the applicant expressly accepted that the sentencing statistics which were relied upon were, to use her term, “bald”, or in other words provided no detail as to the circumstances of the offending to which they related. It is partly for that reason that it has been repeatedly observed that consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of sentencing principle: Hili v R; Jones v R [2010] HCA 45 at [48]-[49]. In my view, the sentencing statistics relied upon by the applicant in the present case do not support a conclusion that the sentence was manifestly excessive.

8. [35]

   Fundamentally, in order to demonstrate that the sentence is manifestly excessive, it is incumbent upon the applicant to establish that it was unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54. The submissions advanced on behalf of the applicant amounted, in large measure, to the proposition that the sentencing judge had failed to give proper weight to his subjective case. Matters of weight are necessarily within the province of the sentencing judge. The circumstances in which matters of weight will justify appellate intervention are narrowly confined: Vaiusu v R [2017] NSWCCA 71 at [29] per R A Hulme J; see also Zhao v R [2016] NSWCCA 179 at [58] per Adams J.

9. [36]

   Further, the seriousness of the applicant’s offending should not be understated. It was perpetrated on a defenceless member of the public who was doing nothing more than minding his own business walking down a suburban street speaking to a family member on his telephone. The fundamental right of a member of the public to go about his or her business without fear of being attacked has been repeatedly reinforced by this Court: see for example Vaeila v R [2010] NSWCCA 113 at [22]; R v Woods [1990] NSWCCA (9 October 1990 unreported); R v Tuuta [2014] NSWCCA 40 at [52]; Mansour v R; Hughes v R [2013] NSWCCA 35 at [43]. It follows that when persons engage in violence towards others of the kind displayed by this applicant towards his victim, a stern sentence will be necessarily imposed.

10. [37]

    In my view, the sentence imposed on the applicant by the sentencing judge was within the proper range of sentencing discretion. In particular, any complaint that the sentencing judge failed to have appropriate regard to the applicant’s subjective case, and imposed a manifestly excessive sentence as a result, cannot be made out. Clearly, her Honour was properly mindful of the fact that an offender’s subjective case, irrespective of how strong it might be, cannot be allowed to result in the imposition of a sentence which is disproportionate to the seriousness of the offending.

11. [38]

    I propose the following orders:

    1. (1)

       Leave to appeal is refused.

12. [39]

    CAMPBELL J: I agree with Bellew J.